Forwarding slip to accompany the _Lump-sum Agreement C.R. AGREEMENT NO: 21/ 2023-2024, Dated 37.03.2024 Name of work Estimate Amount (Revised Cost Estimate) Name of contractor and address Original or supplemental If supplemental (2) Original Agreement (b) Supplemental agreement number if ‘Any, accepted previously. Approximate value of work to be done Under the - Agreement If Supplemental approximate value of work to be done under. Original agreement b) Supplemental agreements, if any previously accepted. It tenders have been called for, is the lowest tender accepted ? if not are reasons recorded? Has the contractor signed the sub- divisional or Sectional copy of M.0.S.S and its addends volume brought up to date? Is data furnished for all item of work noted in the scheme? Construction of Bypass to Madurai - Achambathu - Viratipathu in between km 6/850 to 10/382 of NH 49 Extn. (New NH 85) including Land Acquisition on Engineering, Procurement and Construction (EPC) Basis contract in the state of Tamil Nadu. Job.No. NH49Extn( New NH85)-TM-2021-22-997 Rs. 26006.72 lakhs vide Gol, MORTH,New Delhi (Project South Zone Il) Transport Bhawan, New Delhi Lr.No.RO/Chennai/ MoRTH/ 12014/ NH49Extn/ 59/AP/2021-22 (E-206948) /dated 28.02.2024 Mis IVLR Infrastructure No.3/1 Ashok Nagar, 4” street, Palanedu Main Ruad, Madurai 625018 Original Rs. 124,00,00,000/- ( Base Cost Excluding GST) Yes Yes10. "1 Are the rates in agreements With in the estimate rates or schedule of rates whichever is less and are the lump- ‘sum provisions sufficient or likely to be exceeded. Additional Information a).Original Agreements. 1.Original Agreements. Amount of Tender excess and percentage over the estimate rate 2. If concessional rates of EMD security have been allowed. Reference to sanetion there of b). Supplemental Agreements. Whether the additional items are i), Contingent and non - separable ii) Contingent and separable il). Non Contingent and separable Item No.value of each to be quoted. Whether orders SE or CE or Government as the case may be obtained in case of Contingent and non — separable items as per G.O.Ms.No.667 P.W dated March 1961 regarding orders to be quoted. Whether orders of C.E or Government as the case may be has thus obtained in the case of Contingent and separable or non — Contingent and separable items as per , if so Reference to sanction number to be quoted. Give reference to substituted items, if any included in the agreement and the item in the original / subplemental agreement already accepted the former item substitute and the value of the substituted item (vide GO Ms.No. P.W. dated), OB BS owe An amounting to Rs. 124,00,00,000/- (Rupees One Hundred and Twenty Four Crore Only) (Base Cost excluding GST ) which works out to (+) 9.71% above the Estimates cost of work put to tender is approved by Gol, MORTH.New Delhi (Project South Zone 1) Transport Bhawan, New Delhi Lr.No.RO/Chennai/ MoRTH/ 12014/ NH49Extn/ 59/AP/2021-22 (E-206948) /dated 28.02.2024 and Letter of Acceptance is issued by the Chief Engineer (NH), Chennai in Letter No.6992/Opp2/NH/2023/ Dated 28.02.2024 mer ‘Superintending Engineer (NH)Circle, Madurai -02.ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT ‘THIS AGREEMENTis entered into on this the Fi (= day of Mane 2024 BETWEEN AND [The President of India through the Ministry of Road Transport & Highways, Government of India represented by Superintending Engineer, National Highways, Madurai Circle, Madurai Tamil Nadu (hereinafter referred to as the “Authority” which expression shall, unless repugnant to the context or meaning thereof, include tts administrators, sucvessurs aud assiyus) of One Part; Mss. IVLR Infrastructure, means the selected bidder having its registered office at 3/1, Ashok Nagar 4! street, Indian Oil Petrol Bunk Campus, Palamedu Main Road, Madurai -625018, (here in after referred to as the “Contractor” which expression shall, unless repugnant to the context or meaning thereof, include its successors and permitted assigns) of the Other Part. WHEREAS: ay [The Government of India] had entrusted to the Authority [the development, maintenance and management of “Construction of Bypass to Madurai - Achambathu - Viratipathu in between km 6/850 to 10/382 of NH 49 Extn. (New NH 85) including Land Acquisition on Engineering, Procurement and Construction (EPC) Basis Contract in the state of Tamil Nadu.” The Authority had resolved to [rehabilitate and augment the existing road by “Construction of Bypass to Madurai - Achambathu - Viratipathu in belween km 6/850 to 10/382 of NH 49 Extn. (New NH 85) including Land Acquisition on Engineering, Procurement and Construction (EPC) Basis Contract in the state of Tamil Nadu (Job No NH- 49Extn (New NH-85) - TN - 2021-22 -997)” in accordance with the terms and conditions to be set forth in an agreement to be entered into, ing Superintending Engineer (NH) Circle, Madurai. NO OF CORRECTIONS nu—oO The Authority accordingly invited the proposals {the “Request for Proposals” or “RFP”) from the eligible bidders as per the technical and commercial terms and conditions prescribed in the RFP for undertaking the Project. After evaluation of the bids received, the Authority had accepted the bid of the selected bidder and Chief Engineer (NH) Chennai issued its Letter of Acceptance Letter No. 6992/Opp2/NH/2023/dated.28.02.2024 (hereinafter called the “LOA”) to the selected bidder for rehabilitation and augmentation of the above section of NH 49 Extn. (New NH 85)] at the contract price of Rs.124,00,00,000/- (Exclusive of GST) (Rupees One Hundred and Twenty- Four Crore Only) (specified hereinafter), requiring the selected bidder to inter alia: () to give his consent to enter into this Agreement and the enforceability of the provisions thereof, within 10 {ten) days of the date of issue of LOA; (i) submit Performance Security and Additional Performance Security {if any) as per RFP requirements, and Gii) execute this Agreement within SO {thirty) days of the dule of issue of LOA. ‘The Contractor has fulfilled the requirements specified in Recital (D) above; NOW THEREFORE in consideration of the foregoing and the respective covenants and agreements set forth in this Agreement, the sufficiency and adequacy of which is hereby acknowledged, the Authority hereby covenants to pay the Contractor, in consideration of the obligations specified herein, the Contract Prive or such other sum as may become payable under the provisions of the Agreement at the times and in the manner specified by the Agreement and intending to be legally bound hereby, the Parties agree as follows: Superintending Engineer (NH) Circle, Madurai, NO OF CORRECTIONS NH-Table of Contents PartI Preliminary 1 Definitions and Interpretations 1.1 Definitions 1.2 Interpretation 1.3. Measurements and arithmetic conventions 14 Priority of agreements and errors/discrepancies 15 _Jointand several liability Part II Scope of Project 2 Scope of the Project 21 Scope of the Project 3 Obligations of the Authority 3.1 Obligations of the Authority 3.2 Maintenance obligations prior to the Appointed Date 33 Environmental Clearances 3.4 Deemed Termination upon delay 4 Obligations of the Contractor 4.1 Obligations of the Contractor 4.2 Obligations relating to sub-contracts and any other agreements 43 Employment of foreign nationals 44 Contractor's personnel 45 Advertisement on Project Highway 4.6 Contractor's care of the Works 4.7 Electricity, water and other services 4.8 Untoreseeable dithculties 4.9 Co-ordination of the Works 4.10 Environmental Measures 441 \w. Superintending Enginke (NH) Circle, Madura) 10 12 13 13 16 16 2 2a 22 22 23 24 24 25 25 27 28 28 29 29 29 29 29 30 30412 4.13 51 5.2 53 61 Part III Sufficiency of Contract Price Clearance of the Site Representations and Warranties Representations and warranties of the Contractor Representations and warranties of the Authority Disclosure Disclaimer Disclaimer Construction and Maintenance q 7A Ze 73 74 75 81 82 83 a4 85 86 a7 88. 9o1 9.2 93 94 98 Performance Security Performance Security Extension of Performance Security and Additional Performance Security Appropriation of Performance Security Release of Performance Security Retention Money Right of Way The Site Procurement of the Site Damages for delay in handing over the Site Site to be free from Encumbrances Protection of Site from encroachments Special/ temporary Right of Way Access to the Authority and the Authority's Engineer Geological and archaeological finds Utilities and Trees Existing utilities and roads Shifting of obstructing utilities New utilities Felling of trees Dismantling of structures Superintending Enginebr (NH) Circle, Madurai. 31 31 32 32 35 36 37 37 39 39 41 41 42 42 43 44 44 4s a7 a7 48 48 48 49 49 49 4910 Ww 96 10.1 102 103 104 105 10.6 10.7 108 109 qa 11.2 113 114 115 116 117 11.8 11.9 11.10 1.41 11.12 11.13 1144 11.45 11.16 11.47 11.18 121 Development Period Design and Construction of the Project Highway Obligations prior to commencement of Works Design and Drawings Construction of the Project Highway Maintenance during Construction Period Extension of time for completion Incomplete Works Maintenance Manual As-Ruilt Records Contractor's Use of Authority's Documents Quality Assurance, Monitoring and Supervision Quality of Materials and workmanship Quality control system Methodology Inspection and technical audit by the Authority External technical audit Inspection of construction records Monthly progress reports Inspection Samples Tests Examination of work before covering up Rejection Remedial work Delays during construction Quality control records and Documents Video recording Suspension of unsafe Construction Works Staffand Labour Completion Certificate Tests on Completion Ae Superintending Engibeer (NH) Cifele, Madurai. NG 51 52 52 54 56 87 58 59 60 60 60 61 61 61 61 62 62 62 62 63 64 64 64 65 66 66 66 66 67 70 70 iit12.2 123 2B 13.1 13.2 133 13.4 13.5 14 141 142 143 144 145 146 147 148 149 14.10 15 15.1 152 153 184 16 16.1 7 171 17.2 173 174 175 Completion Certificate 70 Rescheduling of Tests n Change of Scope 72 Change of Scope 72 Procedure for Change of Scope 72 Payment for Change of Scope 4 Restrictions on Change of Scope 4 Power of the Authority to undertake Works 75 Maintenance 76 Maintenance obligations of the Contractor 76 Maintenance Requirements 7 Malntenance Programme 7 Safety, vehicle breakdowns and accidents 78 Lane closure 78 Reduction of payment for non-performance of Maintenance obligations 79 Authority's right to take remedial measures 79 Restoration of loss or damage to Project Highway 79 Overriding powers of the Authority 79 ‘Taking over Certificate 80 Supervision and Monitoring during Maintenance 81 Inspection by the Contractor 81 Inspection and payments 81 Tests 82 Reports of unusual occurrence 82 Traffic Regulation 83 ‘Traffic regulation by the Contractor 83 Defects Liability 84 Defects Liability Period 84 Remedying Defects 84 Cost of remedying Defects 84 Contractor's failure to rectify Defects 85, sion of Defects Liability Period 85 ay Superintending Engine (NH) Circle, Madurai,18, Authority's Engineer 86 18.1 Appointment of the Authority's Engineer 86 182 Duties and authority of the Authority's Engineer 86 183 Delegation by the Authority's Engineer 87 184 Instructions of the Authority's Engineer 87 185 Determination by the Authority's Engineer 88 18.6 Remuneration of the Authority's Engineer 88 18.7 Termination of the Authority's Engineer 88 Part IV 89 Financial Covenants 89 19 Payments o1 19.1 Contract Price 91 192 Advance Payment 1 19.3 Procedure for estimating the payment for the Works 93 19.4 Stage Payment Statement for Works 94 19.5 Stage Payment for Works 94 19.6 Monthly Maintenance Statement of the Project Highway 94 19.7 Payment for Maintenance of the Project Highway 95 19.8 Payment of Damages 95 19.9 Time of payment and interest 96 19.10 Price adjustment for the Works 96 19.11 Restrictions on price adjustment 9 19.12 Price adjustment for Maintenance of Project Highway 99 19.13 Final Payment Statement 100 19.14 Discharge 100 19.15 Final Payment Certificate 100 19.16 Final payment statement for Maintenance 101 19.17 Change inlaw 101 19.18 Correction of interim Payment Certificates 102 19.19 Authority's claims 102 19.20 102 Superintending Engines? (NH) Circle, Madur eu20 20.1 20.2 203 204 205 20.6 20.7 208 20.9 20.10 20.11 20.12 PartV Insurance Insurance for Works and Maintenance Notice to the Authority Evidence of Insurance Cover Remedy for failure to insure Waiver of subrogation Contractor's waiver Cross liabilities Accident or injury to workmen Insurance against accident to workmen Application of insurance proceeds Compliance with policy conditions General Requirements of Insurance Policies Force Majeure and Termination 21 244 212 213 214 215 216 27 218 21.9 21.10 2 22.1 222 22.3 22.4 Force Majeure Force Majeure Non-Political Event Indirect Political Event Political Event Duty to report Force Majeure Event Effect of Force Majeure Event on the Agreement ‘Termination Notice for Force Majeure Event ‘Termination Payment for Force Majeure Event Dispute resolution Excuse from performance of obligations Suspension of Contractor's Rights ‘Suspension upon Contractor Default Authority to act on behalf of Contractor Revocation of Suspension Termination 103 103 104 104 104 104 105 105 105 105 105 106 106 109 109 111 aa i a 112 112 113 114 114 15 115 116 116 116 116 \ Superintending Engine \(NH)Cirele, Madurai.23 ‘Termination 118 23.1 Termination for Contractor Default 118 23.2 Termination for Authority Default 120 23.3. Termination for Authority's convenience yaa. 23.4 Requirements after Termination qa 23.5 Valuation of Unpaid Works 122 23.6 Termination Payment 122 23.7 Other rights and obligations of the Parties 123 23.8 Survival of rights 123 23.9 Foreclosure with mutual consent 124 Part VI 125 Other Provisions 125 m4 Assignment and Charges 126 24.1 Restrictions on assignment and charges 126 24.2 Hypothecation of Materials or Plant 126 25 Liability and Indemnity 127 25.1 General indemnity 127 25.2 Indemnity by the Contractor 127 25.3 Notice and contest of claims 128 25.4 Defence of claims 128 25.5 Survival on Termination 129 26 Dispute Resolution 130 26.1 Dispute Resolution 130 262 Conciliation 130 263 Arbitration 130 26.4. Adjudication by Regulatory Authority, Tribunal or Commission 131 2 Miscellaneous 132 27.1 Governing law and jurisdiction 132 27.2 Waiver of immunity 132 273 Ne 2 132 Superintending Engin (NH) Circle, Madurai?) vii ts274 Waiver 27. Liability for review of Documents and Drawings 27.6 Exclusion of implied warranties etc. 27.7 Survival 27.8 — Entire Agreement 279 Severability 27.10 No partnership 27.11 Third parties 27.12 Successors and assigns 27.13 Notices 2714 Language 27.15 Counterparts 27.16 Confidentiality 27.17 Copyright and Intellectual Property rights 27.18 Limitation of Liability 27.19 Care and Supply of Documents 27.20 Authority's Use of Contractor’s Documents. 27.21 Contractor's Use of Authority's Documents 27.22 Access to the Site by Others 27.23 Term 27.24 Amendments 27.25 Representation and Bribes 27.26 No Agency Schedules Schedule-A Site of the Project The Site Annex-II : Dates for providing Right of Way of Construction Zone Annex-lIl : Alignment Plans Annex-IV : Environment Clearances 132 133 133 133 134 134 134 134 134 185 135 135 135 136 136 137 137 137 (RR 138 138 138 138 Superintending Engi (NK) Circle, Madurai,Schedule - B Development of the Project Highway 1 Development of the Project Highway 2 [Rehabilitation and augmentation] By Specifications and Standards Annex-I : Description of [Two-Laning] Schedule -¢ Project Facilities TF Project Facilities o Description of Project Facilities Schedule - D Specifications and Standards a Construction 2 Design Standards Annex-I : Specifications and Standards for Construction Schedule - E Maintenance Requirements Maintenance Requirements Repair rectification of Defects and deficiencies Other Defects and deficiencies Extension of time limit Emergency repairs/restoration Daily inspection by the Contractor Pre-monsoon inspection / Post-monsoon inspection PN aA ewe Repairs on account of natural calamities Annex-| : Repair/rectification of Defects and deficiencies Schedule - F Applicable Permits iby Applicable Permits Vie Superintending Engine (NH{Circle, Madurai, i teSchedule -G Annex-I : Form of Bank Guarantee Annex-II : Form for Guarantee for Advance Payment Schedule - Contract Price Weightages Drawings 1 Drawings 2 Additional Drawings Annex-I : List of Drawings Schedule - J Project Completion Schedule 1 Project Completion Schedule Project Milestone-1 Project Milestone-I 2, 3, 4. Project Milestone-IIl 5, Scheduled Completion Date 6. Extension of time Schedule - K Tests on Completion Schedule for Tests Tests Agency for conducting Tests eis pe Completion Certificate Schedule - L Completion Certificate Schedule - M Payment Reduction for Non-Compliance 1 Payment reduction for non-compliance with the Maintenance Requirements \ e V Superintending Engine \e\(NH) Gigéle, Madurai.2. Percentage reductions in lump sum payments on monthly basis Schedule - N Selection of Authority's Engineer 1 Selection of Authority's Engineer 2 ‘Terms of Reference 33 Appointment of Government entity as Authority's Engineer Annex-I : Terms of Reference for Authority's Engineer Schedule - Forms of Payment Statements Te Stage Payment Statement for Works 2 ‘Monthly Maintenance l'ayment Statement 3 Contractor's claim for Damages Schedule - P Insurance 1 Insurance during Construction Period z Insurance for Contractor's Defects Liability ar Insurance against injury to persons and damage to property 4 Insurance to be in joint names Schedule-Q ‘Tests an Completion of Maintenance Period i ing Quality test: 2s Visual and physical test: Schedule-R Taking Over Certificate We Mowe Superintending Enginger (NH) Circle, Madurai. xiPart I Preliminary1 @ ) Article 1 ns and Interpretations Definitions The words and expressions beginning with capital letters and defined in this Agreement shall, unless the context otherwise requires, have the meaning ascrihed thereto herein, and the words and expressions defined in the Schedules and used therein shall have the meaning ascribed thereto in the Schedules. In this Agreement, the following words and expressions shall, unless repugnant to the context or meaning thereof, have the meaning hereinafter respectively assigned to them: “Accounting Year” means the financial year commencing from the first day of April of any calendar year and ending on the thirty-first day of March of the next calendar year; “Advance Payment’ shall have the meaning set forth in Clause 19.2; “affoctod Party” shall have the meaning set forth in Clause 21.1; “Affiliate” means, in relation to either Party {and/or Members}, a person who controls, is controlled hy, ar fs under the camman eantrol with sch Party {ar Memher) (as used in this definition, the expression “control” means, with respect to a person which is a company or corporation, the ownership, directly or indirectly, of more than 50% (fifty per cent) of the voting shares of such person, and with respect to a person which is not a company or corporation, the power to direct the management and policies of such person, whether by operation of law or by contract or otherwise}; “Agreement” means this Agreement, its Recitals, the Schedules hereto and any amendments thereto, or any supplementary agreement made in accordance with the provisions contained in this Agreement; “applicable Laws” means all laws, brought into force and effect by the GOI or the State \cluding rules, regulations and notifications made thereunder, and judgements, Aocree9, inunetinna, write nnd ardera nf any ennrt nf reread, applicnhle ta this Agreement and the exercise, performance and discharge of the respective rights and obligations of the Parties hereunder, as may be in force and effect during the subsistence of this Agreement; Government “applicable Permits” means all clearances, licences, permits, authorisations, no objection certificates, consents, approvals and exemptions required to be obtained or maintained under Applicable Laws in connection with the construction, operation and maintenance of the Project Highway during the subsistence of this Agreement; “Appointed Date” means the date declared by the Authority as the project commencement date with the consent of the contractor, as per the process prescribed in Article 3 and 8 of this Wy, Superiptending Engineye (NH) Circle, Madurai 3 Al“arbitration Act” means the Arbitration and Conciliation Act, 1996, with all its subsequent amendments; “Authority” shall have the meaning attributed thereto in the array of Parties hereinabove as set forth in the Recitals; “Authority Default” shall have the meaning set forth in Clause 23.2; “authority's Engineer” shall have the meaning set forth in Clause 18.1; “Authority Representative” means such person or persons as may be authorised in writing by the Authority to act on its behalf under this Agreement and shall include any person or persons having authority to exercise any rights or perform and fulfil any obligations of the Authority under this Agreement; “Bank” means a bank incorporated in India and recognized by the Reserve Bank of India “Base Rate” means the floor rate of interest announced by the State Bank of India for all its lending operations; “Base Date” means the last date of the calendar month, which precedes the Bid Due Date by at least 28 (twenty eight) days; “Bid” means the documents in their entirety comprised in the bid submitted by the [selected bidder/ Joint venture] in response to the Request for Proposal in accordance with the provisions thereof; “Bid Security” means the bid security provided by the Contractor to the Authority in ‘accordance with the Request for Proposal, and which Is to remain in force until substituted by the Performance Security; “Change in Law” means the occurrence of any of the followingafter the Base Date: (a) the enactment of any new Indian law; (b) the repeal, modification or re-enactment of any existing Indian law; (©) the commencement of any Indian law which has not come into effect until the (4) achange in the interpretation or application of any Indian law by a judgement of a court of record which has become final, conclusive and binding, as compared to such interpretation or application by a court of record prior to the Base Date. “Change of Scope” shall have the meaning set forth in Article 13; “Change of Scope Notice” shall have the meaning set forth in Clause 13.2 (i “Change of Scope Request” shall have the meaning set forth in Clause 13.2 (ii); “Change of Scope Order” shall have the meaning set forth in Clause 13.2 (iv); jon Certificate” shall have the meaning set forth in Clause 12. ) ‘Superintending Enginee (NH) Circle, Madurai“Construction” shall have the meaning set forth in Clause 1.2 (1); “Construction Period” means the period commencing from the Appointed Date and ending on the date of the Completion Certificate; “Construction Zone" shall have the meaning set forth in Clause 8.3 (i); “Contract Price” means the amount specified in Clause 19.1 (1); “Contractor” shall have the meaning attributed thereto in the array of Parties hereinabove as setforth in the Recitals; “Contractor Default” shall have the meaning set forth in Clause 23.1; “Cure Period” means the period specified in this Agreement for curing any breach or default of any provision of this Agreement by the Party responsible for such breach or default and shalt (@) commence from the date on which a notice is delivered by one Party to the other Party asking the latter to cure the breach or default specified in such notice; (b) not relieve any Party from liability to pay Damages or compensation under the provisions of this Agreement; and (© not in any way be extended by any period of Suspension under this Agreement; provided that if the cure of any breach default by the Contractor requires any reasonable action by the Contractor that must be approved by the Authority or the Authority's Engineer hereunder, the applicable Cure Period shall be extended by the period taken by the Authority or the Authority's Engineer to accord their approval; “Damages” shall have the meaning set forth in paragraph (w) of Clause 1.2; “Defect” means any defect or deficiency in Construction of the Works or any part thereof, which does not conform with the Specifications and Standards, and in the case of Maintenance, means any Defect or deficiency which is specified in Schedule- “Defects Liability Period” shall have the meaning set forth in Clause 17.1; “Dispute” shall have the meaning set forth in Clause 26.1; ;pute Resolution Procedure” means the procedure for resolution of Disputes set forth in Article 26; “Drawings” means all of the drawings, calculations and documents pertaining to the Project Highway as set forth in Schedule-I, and shall include ‘as built’ drawings of the Project Highway; “Document” or “Documentation” means documentation in printed or written form, or in tapes, discs, drawings, computer programmes, writings, reports, photographs, films, cassettes, orexpressedinany other written electronic, audio or visual form; GRASTR ‘Sy ) approval of the general arrangement drawings (the “GAD") from railway authorities to enable the Contractor to construct road over- bridges/ under- bridges at level crossings on the Project Highway in accordance with the Specifications and Standards, and subject to the terms and conditions specified in such approval, within a period of 60 (sixty) days from the Appointed Date, and reimbursement of all the cdsts and expenses paid by the Contractor to the railway authorities for and in respect of the road over- bridges/ under bridges; and? (c)__allenvironmental clearances as required under Clause 4.3.4 Delay in providing the Right of Way or approval of GAD by railway authorities, as the case may be, in accordance with the provisions of Clause 3.1 (lil) shall entitle the Contractor to Damages in a sum calculated in accordance with the provisions of Clause 8.3 of this Agreement and Time Extension in accordance with the provisions of, Clause 10.5 of this Agreement. For the avoidance of doubt, the Parties agree that the Damages for delay in approval of GAD by the railway authorities for a particular road over-bridge/ under-bridge shall be deemed to be equal to the Damages payable under the provisions of Clause 8.3 for delay in providing Right of Way for a length of 2 (two) kilometre for each such road over-bridge/ under-bridge. ? Clause (b) may be omitted if the Project does not include a road over-bridge/under-bridge. > Clause 3.1 (il) (€) may be suitably modified in the event that all the environmental clearances for the Project Highway have been received or are not required. It should be clearly stated that all the environmental clearances for the Project Highway have been received; or such environmental We : Superintending Engineer (NH) Circle, Madurai.o) wi) 32 Notwithstanding anything to the contrary contained in this Agreement, the Parties expressly agree that the aggregate Damages payable under Clauses 3.1 (iv), 8.3 and 9.5 shall not exceed 1% (one per cent) of the Contract Price. For the avoidance of doubt, the Damages payable by the Authority under the aforesaid Clauses shall not be additive if they arise concurrently from more than one cause but relate to the same part of the Project Highway. Both the parties agree that payment of such Damages shall be full and final settlement of all claims of the Contractor and such compensation shall be the sole remedy against delays of the ‘Authority and both parties further agree that the payment of Damages shall be the final cure for the Contractor against delays of the Authority, without recourse to any other payments. The Authority agrees to provide support to the Contractor and undertakes to observe, comply with and perform, subject to and in accordance with the provisions of this Agreement and the Applicable Laws, the following: (@) upon written request from the Contractor, and subject to the Contractor complying with Applicable Laws, provide reasonable support to the Contractor in procuring Applicable Permits required from any Government Instrumentality for implementation of the Project; (b) upon written request from the Contractor, provide reasonable assistance to the Contractor in obtaining access to all necessary infrastructure facilities and utilities, including water and electricity at rates and on terms no less favourable than those generally available to commercial customers receiving substantially equivalent services; (© procure that no barriers that would have a material adverse effect on the works are erected or placed on or about the Project Highway by any Government Instrumentality or persons claiming through or under it, except for reasons of Emergency, national security, law and order or collection of inter-state taxes: (@)__ not do or omit to do any act, dood or thing which may in any manner violate any provisions of this Agreement; (e) support, cooperate with and facilitate the Contractor in the implementation of the Project in accordance with the provisions of this Agreement; and (© upon written request from the Contractor and subject to the provisions of Clause 4.3, provide reasonable assistance to the Contractor and any expatriate personnel of the Contractor or its Sub-contractors to obtain the applicable visas and the requisite work permits for the purposes of discharge by the Contractor or its Sub-contractors of their obligations under this Agreement and the agreements with the Sub-contractors. Maintenance obligations prior to the Appointed Date ‘The Authority shall, prior to the Appointed Date, maintain the Project Highway, at its own cost. and expense, so that its traffic worthiness and safety are at no time materially inferior as We Superintending Engine (NH) Circle, Madurai, a733 34 24 the event of any material deterioration or damage other than normal wear and tear, undertake repair thereof, For the avoidance of doubt, the Authority shall undertake only routine maintenance prior to the Appointed Date, and it shall undertake special repairs only in the event of excessive deterioration or damage caused due to unforeseen events such as floods or earthquake. Environmental Clearances ‘The Authority represents and warrants that the environmental clearances required for construction of the Project shall be procured by the Authority prior to the date of issue of LOA. For the avoidance of doubt, the present status of environmental clearances is specified in Schedule-A+ Deemed Termination upon delay Without prejudice to the provisions of Clauses 8.3, and subject to the provisions of Clause 7.3, the Parties expressly agree that inthe event the Appointed Date docs not occur, for any reacon whatsoever, within 90 days of signing of the Agreement and submission of the full Performance Security by the Contractor, the Agreement shall be deemed to have been terminated. The Authority shall pay damages to the Contractor equivalentto 196 ofthe Contract Price (3% in case of standalone bridge projects). All other rights, privileges, claims and entitlements of the Contractor under or arising out of this Agreement shall be deemed to have been waived by, and to have ceased. The Contractor shall hand over all information in relation to the Highway, including but not limited to any data, designs, drawings, structures, information, plans, etc. prepared by them for the Highway, to the Authority. * Clause 3.3 may be suitably modified in the event that all the environmental clearances for the Project Highway have been received or are not required. It should be clearly stated that all the environmental clearances for the Project Highway have been received; or such environmental clearances for the Project Highway are not required, Superintending Eng\neer (NH) Circle, Madurai.44 @ ) (iti) ow) ™) wi) (vi) Article 4 Obligations of the Contractor Obligations of the Contractor Subject to and on the terms and conditions of this Agreement, the Contractor shall undertake the survey, investigation, design, engineering, procurement, construction, and maintenance of the Project Highway and observe, fulfil, comply with and perform allits obligations set out in this Agreement or arising hereunder. The Contractor shall comply with all Applicable Laws and Applicable Permits (including renewals as required) in the performance of its obligations under this ‘Agreement. Subject to the provisions of Clauses 4.1 (1) and 4-1 (n), the Contractor shall discharge its obligations in accordance with Gand Industry Practice and as a reasonable and prudent person. ‘The Contractor shall remedy any and all loss, defects, or damage to the Project Highway from the Appointed Date until the end of the Construction Period at the Contractor's cost, save and except to the extent that any such loss, defect, or damage shall have arisen from any wilful default or neglect of the Authority. ‘The Contractor shall remedy any and all loss, defect or damage to the Project Highway during the Defects Liability Period at the Contractor's cost to the extent that such loss, defect or damage shall have arisen out of the reasons specified in Clause 17.3. The Contractor shall remedy any and all loss or damage to the Project Highway during the Maintenance Period at the Contractor's cost, including those stated in Clause 14.1 (ii), save and except to the extent that any such loss or damage shall have arisen on account of any wilful default or neglect of the Authority or on account of a Force Majeure Event. ‘The Contractor shall, at its own cost and expense, in addition to and not in derogation of its obligations elsewhere set out in this Agreement: (@) make, or cause to be made, necessary applications to the relevant Government Instrumentalities with such particulars and details as may be required for obtaining Applicable Permits set forth in Schedule-F and obtain and keep in force and effect such Applicable Permits in conformity with the Applicable Laws; (b) procure, as required, the appropriate proprietary rights, licences, agreements and permissions for Materials, methods, processes and systems used or incorporated into the Project Highway; Kehoe Superintending Enginee| (NH) Circle, Madurai, 5(ix) 26 (Q make reasonable efforts to maintain harmony and good industrial relations among the personnel employed byit or its Sub-contractors in connection with the performance of its obligations under this Agreement; (a) ensure and procure that its Sub-contractors comply with all Applicable Per and Applicable Laws in the performance by them of any of the Contractor's obligations under this Agreement; (©) not do or omit to do any act, deed or thing which may in any manner violate any provisions of this Agreement; (8 support, cooperate with and facilitate the Authority in the implementation and operation of the Project in accordance with the provisions of this Agreement; (5) ensure that the Contractor and its Sub-contractors comply with the safety and welfare measures for labour in accordance with the Applicable Laws and Good Industry Practice; (h) keep, on Site, a copy of this Agreement, publications named in this Agreement, the Drawings, Documents relating to the Project, and Change of Scope orders and other communications given under this Agreement. The Authority's Engineer and its authorised personnel shall have the right of access to all these documents at all reasonable times; () cooperate with other contractors employed by the Authority and personnel of any public authority; and (not interfere unnecessarily or improperly with the convenience of the public, or the access to and use and occupation of all roads and footpaths, irrespective of whether they are public or in the possession of the Authority or of others. The Contractor shall undertake all necessary superintendence to plan, arrange, direct, manage, inspect and test the Works. The Contractor shall provide all necessary superintendence of the Works for the proper fulfilling of the Contractor's obligations under the Agreement. Such superintendence shall be given by competent person having adequate knowledge of the operations to be carried out (including the methods and techniques required, the hazards likely to be encountered and methods of preventing accidents) for the satisfactory and safe execution of the Works. The Contractor shall obtain and maintain a project related bank account operational at site where all transactions related to the payment of work will be done. The Contractor shall submit a monthly account statement and a detailed report on utilization of funds transferred to this project related bank account to Authority's Engineer. Notwithstanding anything contrary to this agreement, the authority, in the interest and to ensure timely completion of the work, reserves the right to audit such bank accounts to ensure that there is no diversion of funds from this project specific account to any other project being implemented by the Contractor. Superintending Engineer (NH) Circle, Madur®) (i) (xii) wii) (co) Gi) The Contractor shall provide the documents of the Contractor specified in the Agreement, and all Contractors’ personnel; Goods, consumables and other things and services, whether of a temporary or permanent nature, required in and for the execution, completion of Works and remedying defects. The Contractor shall perform the Works in conformity with the Project requirements and other requirements and standards prescribed under or pursuant to the Agreement. ‘The Contractor shall carry out such work incidental and contingent to the original Scope of the Project to comply with Good Industry Practices. The Contractor shall maintain required staff and necessary Contractor's equipment and materials within the reach of the Site during the Defects Liability Period so that any defects arising are promptly attended. Obligations relating to sub-contracts and any other agreements The Contractor, whether Joint Venture or sole, shall not sub-contract any Works in more than 49% (forty nine per cent) of the Contract Price and shall carry out Works directly under its own supervision and through its own personnel and equipment in at least 51% (fifty one per cent) of the Contract Price. Further, in case the Contractor is a Joint Venture, then the Lead Member shall carry out Works directly through its own resources (men, material and machines etc.) in at least 51% (fifty one per cent) of total length ofthe Project Highway. Provided, however, that in respect of the Works carried out directly by the Contractor, it may enter into contracts for the supply and installation of Materials, Plant, equipment, road furniture, safety devices and labour, as the case may be, for such Works. For the avoidance of doubt, the Parties agree that the Contractor may sub-divide the aforesaid length of 51% (fifty one per cent) in no more than 5 (five) sections of the Project Highway. The Parties further agree that all obligations and liabilities under this Agreement for the entire project Highway shall atall times remain with the Contractor. In the event any sub-contract for Works, or the aggregate of such sub-contracts with any Sub-contractor, exceeds 5% (five percent) of the Contract Price, the Contractor shall communicate the name and particulars, including the relevant experience of the Sub-contractor, to the Authority prior to entering into any such sub-contract. The Authority shall examine the particulars of the Sub- contractor from the national security and public interest perspective and may require the Contractor, no later than 15 (fifteen) business days from the date of receiving the communication from the Contractor, not to proceed with the sub-contract, and the Contractor shall comply therewith. In the event any sub-contract referred to in Clause 4.2 (i) relates to a Sub- contractor who has, over the preceding 3 (three) years, not undertaken at least one work of a similar nature with a contract value exceeding 40% (forty per cent) of the value of the sub-contract to be awarded hereunder, and received payments in respect thereof for (NH) Circle, Madurai.Gv) 43 44 a ) 28 than 15 (fifteen) business days from the date of receiving the communication from the Contractor, require the Contractor not to proceed with such sub-contract, and the Contractor shall comply therewith without delay or demur. It is expressly agreed that the Contractor shall, at all times, be responsible and liable for all its obligations under this Agreement notwithstanding anything contained in the agreements with its Sub-contractors or any other agreement that may be entered into by the Contractor, and no default under any such agreement shall excuse the Contractor from its obligations or liability under this Agreement. However, in case of non-compliance of the Contractor towards his obligations for payments to the approved Sub-contractor(s), which is likely to affect the progress of works, the authority reserves the right to intervene and direct the Contractor to release such outstanding payments to approved Sub-contractor(s) out of the payments due for the completed Works in the interest of work. Employment of foreign nationals The Conliactor acknuwledges, agices aiid undertakes Uial employment ul turer personnel by the Contractor and/or its Sub-contractors and their sub- contractors shall be subject to grant of requisite regulatory permits and approvals including employment/ residential visas and work permits, if any required, and the obligation to apply for and obtain the same shall always rest with the Contractor. Notwithstanding anything to the contrary contained in this Agreement, refusal of or inability to obtain any such permits and approvals by the Contractor or any of its Sub- contractors or their sub-contractors shall not constitute a Force Majeure Event, and shall not in any manner excuse the Contractor from the performance and discharge it of its obligations and liabilities under this Agreement, and the Contractor's liabi hereunder shall remain unaffected by such failure, refusal or inability. Contractor’s personnel The Contractor shall ensure that the personnel engaged by it or by its Sub- contractors in the performance of its obligations under this Agreement are at all times appropriately and adequately qualified, skilled and experienced in their respective functions in conformity with Good Industry Practice. The Contractor will try to hire at east 10% (ten percent) trained workmen as per the National Skills Qualifications Framework. If necessary, the requisite workmen may be gottrained by the Contractor at his cost through authorized training centres of the Directorate General of Training (DCT). The Contractor will organize training at project site/ sites for the trainees as and when required as per the training schedule finalized in consultation with the training centres. The trainees shall be paid stipend by the Contractor (subject to a maximum of Rs. 15,000/- per person) on the basis of minimum wages to compensate for loss of income during the training period. The Authority's Engineer may, for reasons to be specified in writing, direct the Contractor to remove any member of the Contractor's or Sub-contractor’s personnel. Provided that any such direction issued by the Authority's Engineer shall specify the the removal of such person. ANFRAS » ay Superintending Engineer (NH) Circle, Madurai.Gi) 45 46 47 48 49 o ‘The Contractor shall on receiving such a direction from the Authority's Engineer order for the removal of such person or persons with immediate effect. It shall be the duty of the Contractor to ensure that such persons are evicted from the Site within 10 (ten) days of any such direction being issued in pursuance of Clause 4.4 (ii). The Contractor shall further ensure that such persons have no further connection with the Works or Maintenance under this Agreement. The Contractor shall then appoint (or cause to be appointed) a replacement. Advertisement on Project Highway ‘The Project Highway or any part thereof shall not he used in any manner to advertise any ‘commercial product or services. Contractor's care of the Works ‘he Contractor shal bear full risk in, and take full responsibility tor, the care of the Works, and of the Materials, goods and equipment for incorporation therein, from the Appointed Late untal the date of Completion Certificate, save and except to the extent that any such loss or damage ul default or gross neglect of the Authority. shall have arisen from any. Electricity, water and other services ‘The Contractor shall be responsible for procuring ofall utilities as may be required, including without limitation, adequate power, water and other services. Unforeseeable difficulties Exceptas otherwise stated in the Agreement: (@) the Contractor accepts complete responsibility for having foreseen all difficulties and costs of successfully completing the Works; (b) the Contract Price shall not be adjusted to take account of any unforeseen difficulties or costs; and (©) the Scheduled Completion Date shall not be adjusted to take account of any unforeseen difficulties or costs. Co-ordination of the Works The Contractor acknowledges that in addition to the Agreement, it is also aware of terms of the other Project contracts and other agreements the Authority has negotiated and entered into for performance of its obligations under the Agreement ( copies of other contracts and other agreements are made available to the Contractor from time to time) and that the Contractor is fully aware of the consequences to the Authority which would or are likely to result from a breach by the Contractor of its obligations under the Agreement. In the event the actions of the Contractor result in the breach by the Authority of any or all of the other Project contracts and such breach imposes any liability on the Authority, the Contractor shall: (a) undertake all steps as may be possible to mitigate or neutralize the liability that Has arisen, and (b) WX \ S) LAY Superintending Engineet (NH) Circle, Madurai. 48w 4.10 @ 4a1 @ 30 indemnify the Authority against any such liability and compensate the Authority to that extent. ‘The Contractor shall be responsible for the co-ordination and proper provision of the Works, including co-ordination of other Contractors or Sub-contractors for the Project. The Contractor shall co-operate with the Authority in the co- ordination of the Works with the works under the other Project contracts. The Contractor shall provide all reasonable support for carrying out their workto: (@)__ any other contractors employed by the Authority; (b) the workmen of the Authorit (the workmen of any Governmental Instrumentality who may be employed in the execution of work on or near the Site; and (4) such other persons as is requirec completion of the Project. the opinion of the Authority tor successtul Environmental Measures ‘The Contractor agrees to conduct its activities in connection with the Agreement in such a manner so as to comply with the environmental requirements which includes, incor alla, all the condilons required (w be saustled under Whe euvirniuental clearances and applicable Inw, and naanmes full reanonaihility for menaures which are required to be taken to ensure such compliance. Site Data ‘The Contractor shall be deemed to have inspected and examined the Site and its surroundings and to have satisfied himself before entering into the Agreement in all material respects including but not limited to: (a) the form and nature of the Site (including, inter-alia, the surface and sub- surface conditions and geo-technical factors); (b) the hydrological and climatic conditions; (©) the extent and nature of the works already completed and Materials necessary for the execution and completion of the Works and the remedying of any defects that includes already executed part also. (a) the suitability and the adequacy of the Site for the execution of the Works; (©) __ the means of access to the Site and the accommodation the Contractor may require; (arranging permits as required as per [] of the Agreement. (g)__ the requirements of operation and maintenance; and (h) alll other factors and circumstances affecting the Contractor's rights and obligations under the Agreement, the Contract Price and Time for Completion. Wee Superintending Enginee (NH) Circle, Madurai.412 4.13 444 Sufficiency of Contract Price The Contractor shall have satisfied itself as to the correctness and sufficiency of the Contract Price, The Contract Price shall cover all its obligations under the Agreement, in addition to all risks the Contractor has agreed to undertake under the Agreement, including those associated with the performance of its obligations under the Agreement and all things necessary for the provision of the Works in a manner satisfactory to the Authority and in accordance with this Agreement. Clearance of the Site During the provision of the Works, and as a pre-condition to the issue of the Taking-Over Certificate, the Contractor shall clear away and remove from the Site, all Contractor's equipment, surplus material, wreckage, rubbish and temporary Works, and shall keep the Site free from all unnecessary obstructions, and shall not store or dispose of any Contractor's equipment or surplus materials on the Site. The Contractor shall promplly clear away and remove from the Site any wreckage, rubbish or temporary Works no longer required and leave the Site and the Works in a clean and safe condition to the sole satisfaction of the Authority. Obligations relating to local content ‘The contractor ( class - | local supplier/ Class I! local supplier/ Non local Supplier) Undertakes to ensure minimum local content in the Project Highway of at least (50%/20%) duly complying with the provisions of Department for promotion of Industry and internal trade, Ministry of commerce and Industry, Government of India Order No.P-45021/2/2017- PP(BE_II) dated September 16, 2020, as amended or modified till Bid Due date and the provisions under Rule 144 (xi) of GFR, 2017. \. Superintending Engine: (NH) Circle, Madurai 315a Article 5 Representations and Warranties Representations and warranties of the Contractor The Contractor represents and warrants to the Authority that: fa) © oO (d@) © 0) (8) @) it is duly organised and validly existing under the laws of India, and has full power and authority to execute and perform its obligations under this Agreement and to carry out the transactions contemplated hereby; it has taken all necessary corporate and/or other actions under Applicable Laws to authorise the execution and delivery of this Agreement and to validly exercise its rights and perform its obligations under this Agreement; this Agreement constitutes its legal, valid and binding obligation, enforceable against iL in accordance with the lets eteuf, and ils obligations under this Agreement will be legally valid, binding and enforceable against it in accordance with the terms hereof; its subject to the laws of India, and hereby expressly and irrevocably waives any immunity in ony Jurisdiction in respect uf Us Agreemunt or matters arising thereunder Including any obligation, Wabilily or responsibility hereunder; the Information furnished in the Bid, Request {or Qualification and Request for Proposals or otherwise and as updated on or before the date of this Agreementis true and accurate in all respects as on the date of this Agreement; the execution, delivery and performance of this Agreement will not conflict with, or result in the breach of, or constitute a default under, or accelerate performance required by any of the terms of its memorandum and articles of association or any Applicable Laws or any covenant, contract, agreement, arrangement, understanding, decree or order to which it is a party or by which it or any of its properties or assets is bound or affected; there are no actions, suits, proceedings, or investigations pending or, to its knowledge, threatened against it at law or in equity before any court or before any other judicial, quasi-judicial or other authority, the outcome of which may result in the breach ofthis Agreement or which individually or in the aggregate may result in any material impairment of its ability to perform any of its obligations under this Agreemer it has no knowledge of any violation or default with respect to any order, writ, injunction or decree of any court or any legally binding order of any Government Instrumentality which may result in any material adverse effect on its ability to perform its obligations under this Agreement and no fact or circumstance exists which may give rise to such proceedings that would Superintending Engine (NH) Circle, Madurai,w @ o w n (m) it has complied with Applicable Laws in all material respects and has not been subject to any fines, penalties, injunctive relief or any other civil or criminal liabilities which in the aggregate have or may have a material adverse effect on its ability to perform its obligations under this Agreement; no representation or warranty by it contained herein or in any other document furnished by it to the Authority or to any Government Instrumentality in relation to Applicable Permits contains or will contain any untrue or misleading statement of material fact or omits or will omit to state a material fact necessary to make such representation or warranty not misleading; no sums, in cash or kind, have been paid or will be paid, by it or onits behalf, to any person by way of fees, commission or otherwise for securing the contract or entering into this Agreement or for influencing or attempting to {influence any officer or employee of the Authority in connection therewith; 12 contained in this Agreement shall create any contractual relationship or obligation between the Authority and any Sub- contractors, designers, consultants or agents of the Contractor; it is adequately financed has the requisite knowledge, expertise, technical Know-how, experience, resources, infrastructure, licenses, patents, copy rights, for designing, supplying/ procuring the goods and materials, and for providing the installation and construction services required for completing the construction of the Project Facilities; and It represents the Authority that: @) (b) © (@) © it owns or has the right to use all “Intellectual Property” necessary to perform the contractual obligations and to carry on the Works without conflict with the right of others; All intellectual property rights necessary to perform the contractual obligations and to carty on the Warks are in lull lurce and ettect and are vested in, and beneficially owned by the Contractor, and are free from encumbrances. None of the intellectual property rights is being used, claimed, or posed or attacked by any other person, nor does the use of such intellectual property rights or any part of them infringe the intellectual property rights owned or enjoyed by any third party. None of the intellectual property rights owned or used by the Contractor is the subject of any claim, opposition, attack, assertion or other arrangement of whatsoever nature which does or may impinge upon their use, validity. enforceability or ownership by the Parties, and there are no grounds or other circumstances which may give rise to the same. No licenses or registered user or other rights have been granted or agreed to Superintending Engineer (NH) Circle, Madurai. Ay